TMI Blog1986 (12) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... District Gurgaon from the previous landlord. The premises hereinafter will be referred as the 'premises'. Few months prior thereto that is to say on 10th July, 1971, the respondent had purchased another house near Kabir Bhavan, Gurgaon. The appellant's case was that the respondent got vacant possession of the same. The respondent, however, denied that assertion. On 7th August, 1972 the respondent sold the said house near Kabir Bhavan. It is asserted that the sale was to one Resham Devi who is alleged to be the sister-in-law of the respondent. On the other hand this is disputed and it appears that she is the sister-inlaw of the brother of the respondent. The assertion of the appellant was that this was a benami transaction. On 14th January, 1974, an application for ejectment was filed before the Rent Controller by the respondent on grounds of (a) non-payment of rent, (b) sub-letting, and (c) bona fide requirement. So far as the grounds of non-payment of rent and sub-letting, are concerned, it has been held by all the courts in favour of the tenant. Those findings are not in dispute in this appeal. The only ground that survives is the bona fide requirement of the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he trial court if the facts and circumstances so warrant. Furthermore, in the instant case section 15 of the Act deals with the powers of the appellate and revisional authorities under the Act. Sub-section (4) of the said section specifically provides that if necessary, after further enquiry as it thinks fit either personally or through the Controller, the appellate authority shall decide the appeal. Therefore, the appellate authority has by express provision jurisdiction to admit additional evidence. Indeed in this case from the written statement, it appears that the only contention that was sought to be raised was about the extent of the accommodation available to the landlord in the ancestral house of the landlord. The allegation about the alleged sale of the premises near Kabir Bhavan was not clearly spelled out. Therefore, if the interest of justice so demanded, the appellate authority was justified in admitting the additional evidence. The parties in this case had ample opportunity to test the veracity and to examine and submit on the value of such additional evidence. No prejudice could be said to have been caused by admission of such additional evidence. In State of K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant had proved the bona fide requirement. The appellate authority had noted the evidence adduced by the respondent before the appellate authority. It is clear that the residential house of the family of the petitioner was having two rooms only and there was large number of persons occupying the two rooms. The family of the petitioner consisted of really seven brothers and one sister. Admittedly two brothers and their families were occupying the said premises. The premises in question belonged to the grand father of the respondent. The grand father was an advocate. He died. After his death his chamber was let out to Laxmi Commercial Bank. It was contended that the respondent was a co-parcener in the said joint family house. It was submitted that if the said chamber which was a big room was available, then, it could not be said that there was dearth of the accommodation in the ancestral house. It is true that the appellate authority had proceeded on the basis that the two rooms for occupation were available in the said house for the father and the two sons including the respondent and his family in the ancestral house. But assuming that even if we take into consideration the chamber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o single heir by the rule of primogeniture. It was held that in order to render alienations by the rejah in that case invalid as made without the consent of his son it must be shown that the rajah's power of alienation was excluded by the custom or by the nature of the tenure. In such a raj the son is not a co-sharer with his father. The Judicial Committee further observed that property in ancestral estate acquired by birth under the Mitakshara law is so connected with the fight to partition that it does not exist independently of such fight. At page 64 of the report, the Judicial Committee observed that the property in the paternal or ancestral estate acquired by birth under the Mitakshara law is, in the opinion of the Judicial Committee, so connected with the fight to partition, that it did not exist where there was no right to it. We are of the opinion that no much support can be sought for by the appellant from the said decision; Here in the instant case, the question is whether the respondent who undoubtedly was governed by the Mitakshara School of Law, had acquired a fight to ancestral property by his birth. But this question has to be judged in the light of the Hindu Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn. page 919. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-avis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was fight in holding that the respondent was a licensee of his father in respect of the ancestral house. But as mentioned hereinbefore, even if we proceed on the assumption that the respondent was a member of the HUF which owned the ancestral house, having regard to his share in the property and having regard to the need of other sons of the father who were living in the ancestral house along with their families, the appellate authority was ,s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue. There was the evidence for the appellate authority to come to the conclusion that the house near Kabit Bhavan was not vacant. It acted on the same and in our opinion it did not commit any error in so doing. The next aspect urged was that it was benami transaction because the father of the respondent has gone to the Registration office. In view of the evidence discussed by the appellate authority, specially the income-tax records and other records to which it is not necessary to advert in detail as well as the oral testamoney in this case, the appellate authority rejected the contention that the sale was a henami transaction by the respondent. The most important aspect, however, as was highlighted by the respondent was that the said property was purchased in July, 1971 and sold in August, 1972 because it was not in vacant possession. In the instant case suit for eviction in question for the need of the landlord was filed in January, 1972. Therefore, the respondent could not be said in view of the said premises having been purchased and sold by him prior to the institution of the suit, to have occupied another residential building in the urban area. It was contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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